27 Fla. L. Weekly Supp. 998a

Online Reference: FLWSUPP 2712DUDLInsurance — Personal injury protection — Coverage — Medical expenses — Reimbursement — Multiple Procedure Payment Reduction — Insurance policy gave adequate notice of insurer’s use of MPPR where policy clearly and unambiguously elected the use of Medicare coding policies and payment methodologies, which includes utilization of the MPPR method — A specific reference to MPPR was not required — MPPR should not be considered an improper utilization limit

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. MILLENNIUM RADIOLOGY, LLC, a/a/o Saloma Dudley, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-098-AP-01. L.T. Case No. 14-003280-SP-23. February 8, 2019. On appeal by State Farm Mutual Automobile Insurance Company (“State Farm”) from a “Final Judgment and Order Granting Plaintiff’s Motion for Summary Judgment and Denying Defendant’s Cross Motion for Summary Judgment” (the “Final Judgment”) entered on February 29, 2016. Counsel: De Ann J. McLemore, Mark D. Tinker and Charles W. Hall, Banker Lopez Gassler P.A., for Appellant. Robert J. Hauser, Pankauski Hauser PLLC, and Yigal D. Kahana, Law Offices of Yigal D. Kahana, for Appellee.

[Lower court opinion at 25 Fla. L. Weekly Supp. 554a.]

(Before HIRSCH, DIAZ, and BLUMSTEIN, JJ.)

(BLUMSTEIN, J.) On or about August 19, 2013, Saloma Dudley (“Dudley”) was injured in an automobile accident. At all relevant times, Dudley was insured under a State Farm 9810A Insurance Policy (the “Policy”), On September 24, 2013, Dudley had two MRIs performed at Millennium Radiology LLC (“Millennium”) and assigned her State Farm PIP benefits to Millennium, which then billed State Farm for each procedure. In determining a reasonable amount for reimbursement, State Farm applied a Multiple Procedure Payment Reduction (“MPPR”). Millennium filed an action in county court alleging that State Farm breached the terms and conditions of its Policy and Florida’s No-Fault Motor Vehicle Law.

Millennium filed a “Motion for Final Summary Judgment” and State Farm filed a “Cross Motion for Summary Judgment.” There was no issue as to the relatedness and medical necessity of the services at issue. Millennium argued that State Farm was obligated by its Policy to reimburse pursuant to the Medicare Part B participating physician fee schedule (the “Medicare Part B Schedule); however, instead it reimbursed using the MPPR method. Millennium contended that this reduction of benefits violated the terms of the Policy and Florida’s No-Fault Law. State Farm’s “Cross Motion for Summary Judgment” claimed that the Policy explicitly allowed State Farm to limit reimbursement pursuant to not just the Medicare Part B Schedule, but also, the Medicare coding policies, including the MPPR method. State Farm claimed that the Policy at issue is unambiguous and must be applied as written.

The trial court in its Final Judgment found as a matter of law that the Policy is clear and unambiguous in its election to pay pursuant to the 2007 Medicare Part B Schedule; however, the trial court further found that the general references in the Policy to Medicare coding policies were vague and ambiguous. The trial court found that the Policy did not clearly and unambiguously elect the MPPR, and does not permit State Farm to limit reimbursement to less than 80% of the allowable amount under the 2007 Medicare Part B Schedule. Accordingly, the trial court granted Final Summary Judgment for Millennium and denied State Farm’s Cross Motion for Summary Judgment. This appeal followed.

This Appellate Court finds that the State Farm Policy clearly and unambiguously elects the use of Medicare coding policies and payment methodologies, which includes utilization of the MPPR method. The Office of Insurance Regulation (“OIR”) approved the Policy.¹ MPPR is a permissible payment methodology and not an improper “utilization limit.”

MPPR is basically a payment methodology used by the Medicare program to reduce payment for medical services when two or more services have been rendered on the same day, to the same patient, by the same physician, in the same session. Performing all services in one session reduces time, labor, and general costs associated with performing multiple procedures over multiple days. The State Farm Policy clearly and unambiguously elects the use of Medicare coding policies and payment methodologies, including applicable modifiers such as the use of MPPR. Further, the PIP Statute was amended in 2012 and expressly permits the use of Medicare payment methodologies and/or coding policies. § 627.736(5)(a)(3), Fla. Stat. (2012).

In Geico General Insurance Company v. Virtual Imaging Services, Inc., 141 So. 3d 147, 160 (Fla. 2013) [38 Fla. L. Weekly S517a], the Florida Supreme Court held that “in order for an exclusion or limitation in a policy to be enforceable, the insurer must clearly and unambiguously draft a policy provision to achieve that result.” However, the Court did not dictate a specific form for such notice. Allstate Indemnity Company v. Markley Chiropractic & Acupuncture, LLC, 226 So. 3d 262, 266 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D793b]. Reason dictates that if Virtual Imaging does not require an insurer to use the specific term “Medicare” in electing and notifying its insured of the use of the Medicare fee schedule, then State Farm is not required to use the letters/acronym “MPPR” in notifying the insured of its possible use to determine costs. Id.

The courts in Allstate Fire and Cas. Ins. v. Stand-Up MRI of Tallahassee, P.A., 188 So. 3d 1 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D693b]; Markley, LLC, 226 So. 3d at 266 (Virtual Imaging requires no “magic words”); Fla. Wellness & Rehab. v. Allstate Fire & Cas. Ins. Co., 201 So. 3d 169 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D1619c]; and, Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a], interpreted an Allstate Policy, which is somewhat similar to the Policy at issue in the instant ease. The Allstate policy references “any and all limitations authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the laws, including, but not limited to, all fee schedules.”

The State Farm Policy references “the use of Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers,” hacking the language of the 2012 amendment.² The State Farm Policy is even more specific than the general reference to “all fee schedules” in the Allstate Policy that was upheld in the cases above and provides more than sufficient notice of the method of reimbursement.³ State Farm gave adequate notice of its election of the fee schedules to limit its payments.

Based upon the above, this Appellate Court finds that the 2012 amendment to the No-Fault Statue explicitly permitted State Farm to utilize the Medicare coding policies and payment methodologies, that a specific reference to MPPA was not required, and thus, State Farm’s Policy gave adequate notice of their possible use.⁴

While this issue was not addressed below, MPPR should not be considered an improper utilization limit. MPPR is a payment methodology used by Medicare to place limitations on the amount of reimbursement available, when more than one medical service such as an MRI is provided to the same patient in the same session. “It is not a utilization limit simply because it limits reimbursements.” SOCC, P.L., a/a/o Youssef Assal v. Progressive Am. Ins. Co., 24 Fla. L. Weekly Supp. 163b (Fla. 13th Jud. Cir. Cnty. Ct. Apr 18, 2016); see also Path Med. Broward a/a/o Shantí Bryant v. Progressive Select Insurance Company, CONO 15-005121 (Fla. 17th Jud. Cir. Cty. Ct. June 15, 2016) [24 Fla. L. Weekly Supp. 894a]. A limit on utilization means a limitation on the use or duration of a particular service or item. Interventional Spine Ctr., LLC, a/a/o Pascal Fils-Aime v. Progressive Am. Ins. Co., 23 Fla. L. Weekly Supp. 610a (Fla. 11th Jud. Cir. Cnty. Ct. Oct. 7, 2015). MPPR in no way limits the uses, duration, or the number of procedures, a provider may perform on a patient or that a patient may access. MPPR is simply a payment reduction employed due to the economic efficiencies achieved by performing multiple procedures in the same day.

Accordingly, the “Final Judgment and Order Granting Plaintiff’s Motion for Summary Judgment and Denying Defendant’s Cross Motion for Summary Judgment” is REVERSED and this matter is REMANDED with instructions to enter judgment in favor of State Farm on its Cross Motion for Summary Judgment. The trial court is further instructed to address all motions for fees and costs based upon this Appellate Court’s opinion. (HIRSCH and DIAZ, JJ., concur.)

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¹While the decision of the OIR is subject to judicial review, there is no reason to determine that the OIR approval is invalid.

²Section 627.736(5)(a)(3), Fla. Stat. (2012) provides, in part, that: “subparagraph 1. does not prohibit an insurer from using the Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers, to determine the appropriate amount of reimbursement for medical services.”

³The Ninth Judicial Circuit Appellate Court in State Farm Automobile Insurance Company v. Florida Emergency Physicians Kang & Associates, M.D., P.A., 2016-CV-000024-A-O (Fla. 9th Jud. Cir. Ct. Dec 18, 2017) [25 Fla. L. Weekly Supp. 774a], found “the State Farm notice . . . to be at least as clear as Allstate Notice in Orthopedic Specialists.

⁴See also Millennium Radiology, LLC a/a/o Angela Renteria v. State Farm Fire and Casualty Company, 23 Fla. L. Weekly Supp. 360a (Fla. 11th Jud. Cir. Cty. Ct. Aug. 11, 2015) (State Farm was permitted to use MPPR to determine allowable amount under Medicare Part B schedule); Interventional Spine Ctr., LLC, a/a/o Pascal Fils-Aime v. Progressive Am. Ins. Co., 23 Fla. L. Weekly Supp. 610a (Fla. 11th Jud. Cir. Cnty. Ct. Oct. 7, 2015) (MPPR provides an allowable, amount under Medicare Part B schedule); AFO Imaging, Inc. a/a/o Asha Brown v. State Farm Mut. Auto. Ins. Co., 24 Fla. L. Weekly Supp. 165b (Fla. 13th Jud. Cir. Cty. Ct. Mar. 15, 2016) (2012 version of the No-Fault Statute explicitly permits an insurer to consider Medicare coding policies); Sports Imaging Center, LLC v. State Farm Mutual Automobile Insurance Company, 562014SC000513C2 (Fla. 19th Jud. Cir. Cty. Ct. Nov. 8, 2017) (State Farm’s 9810A policy properly incorporates the ability to limit payment); Plantation Open MRI, LLC v. State Farm Mutual Automobile Insurance Company, COCE 14 -011350 (54) (Fla. 17th Jud. Cir. Cty. Ct. Nov. 3, 2017) [25 Fla. L. Weekly Supp. 831a] (State Farm 9810A Insurance Policy permitted it to reimburse below the 2007 Medicare Part B Fee schedule through the application of MPPR.).